Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for the County of Los Angeles. No. MA036212 Hayden Zacky, Judge.
Jeffrey Lewis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
SUMMARY
Armondo Rivera was convicted by a jury of corporal injury to his spouse, making a criminal threat and assault. On appeal, he asserts the evidence was insufficient to support the spousal abuse conviction; the trial court erred in admitting evidence of his gang affiliation and history of domestic violence; and his statutory and constitutional rights were violated when the trial court excluded him from the readback of testimony during jury deliberations. Rivera also requests this court’s independent review of the in cameraproceedings on his Pitchess motion. We find no merit in any of Rivera’s contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Rivera was charged by information with one count of corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)); three counts of criminal threats, two directed at his spouse and one directed at the arresting officer (Pen. Code, § 422); and one count of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) Rivera entered a not guilty plea. The trial court granted Rivera’s Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531) and, after an in camerahearing, determined there was no information to disclose to the defense.
Statutory references are to the Penal Code unless otherwise specified.
The charges against Rivera arose from an incident that occurred at the residence of his wife on the evening of September 13, 2006. Rivera and his wife, Jennifer Jimenez Rivera (Jimenez) had been married for a year and a half, but had dated for ten years and had a four-year old daughter together. Jimenez was residing at a “sober living” facility with her two daughters after her recent release from prison. Rivera arrived at his wife’s house in the evening after having taken “a bunch of pills.” According to Jimenez, Rivera was in a state of considerable agitation because his daughter had been molested, and he blamed Jimenez because the molestation occurred at the sober living facility. Rivera and Jimenez argued and called each other names. Jimenez testified Rivera threw a shoe at her, which grazed her shoulder; pushed her in the back; and kicked her leg, and she pushed and spit at Rivera. They went outside and continued arguing. Some evidence indicated that Rivera took a metal club (a device used to lock a steering wheel) out of his truck and attempted to strike Jimenez with it; Jimenez said Rivera swung at her with his fist, but missed her. A neighbor, Frank Marasco, testified that he grabbed the club from Rivera and threw it in Rivera’s truck. An unidentified man, apparently another neighbor or the neighbor’s son, saw Rivera and Jimenez arguing, confronted Rivera and began fighting with him. Jimenez went inside and called 9-1-1, telling the operator that Rivera had kicked and punched her and was fighting with someone outside. Rivera left in his truck, and the police (Deputies Jacob and Fenderson) arrived shortly thereafter.
Jimenez gave the police a handwritten, signed statement, in which she wrote:
“The following are my statements to Deputy Fenderson. At 8:20 p.m. on 9/13/06, my husband came and started arguing. I asked him to leave. He then started to cuss me out. And he then kicked me and punched me in the back. Then we somehow got him outside. Then he swung at me. I further went in the house with my daughter. I want to press charges against Armondo Rivera. I am willing to go to court. I have been abused for nine and a half years, verbal and hitting me and breaking things.”
According to Deputy Fenderson, Jimenez told him that Rivera punched her in her back and threw a shoe at her, which hit her upper body; Jimenez asked that paramedics be called because she was experiencing back pain. Deputy Fenderson observed “just a bruise or a small redness” on the mid-portion of Jimenez’s back. Deputy Jacob also observed a slight amount of redness to the middle part of Jimenez’s back, and testified she was nervous and shaking. Jimenez asked the deputies to arrest appellant, but they could not locate him because the address Jimenez gave them was incorrect.
A couple of hours later, Jimenez called the police station and said Rivera was now threatening to kill her and her daughters; she said she had been so upset when the deputies were there that she had given them the wrong address for Rivera. Deputy Jacob responded to Jimenez’s telephone call. Jacob testified that when he arrived, Jimenez was frightened, and said Rivera had left two threatening messages. Jacob listened to two voicemail messages. In one, Rivera said he was going to “come get” Jimenez with all of his friends from “818.” In the second message, Rivera said he was going to blow up Jimenez’s house, was going to come with his friends, and there would be “hell to pay.” According to Deputy Jacob, Jimenez told him that Rivera was a gangster and was affiliated with the South Side gangsters, she believed Rivera was going to carry out his threats and she knew Rivera’s gangster friends had killed people. Jacob testified Jimenez begged him to arrest Rivera and let her know when he had been arrested so she could sleep.
Deputy Jacob went to Rivera’s home and arrested him. Because Rivera was complaining of back pain, he was taken to a hospital for evaluation before being booked. While at the hospital, Rivera stared at Jacob and told him that he was “going to come get [Jacob]” when he got out of jail, and that he was going to “train” for the fight with Jacob while he was in jail.
A few days later, when another detective contacted Jimenez to follow up on Jacob’s report on the threatening telephone messages, Jimenez was uncooperative. She told the detective the messages had been erased and she no longer wanted to prosecute the case.
The jury found Rivera guilty of corporal injury to his spouse, and guilty of one of the two counts of criminal threats against his spouse. Rivera was found not guilty on the other criminal threat count against Jimenez, and not guilty of assault with a deadly weapon, but guilty of the lesser included offense of misdemeanor assault. The jury could not agree on the criminal threat count relating to Deputy Jacob, and the prosecution subsequently dismissed that charge. Rivera was sentenced to the mid term of three years on the corporal injury count, and to concurrent sentences on the other counts.
This appeal followed.
DISCUSSION
Rivera contends the evidence was insufficient to convict him of corporal injury to a spouse. He also asserts errors in the admission of evidence and violation of his right to be present during the readback of testimony to the jury. Finally, he requests appellate review of the in cameraproceedings on his Pitchess motion.
1. The evidence of corporal injury to Jimenez was sufficient to support a conviction.
Under section 273.5, subdivision (a), anyone who willfully inflicts upon his or her spouse “corporal injury resulting in a traumatic condition” is guilty of a felony. A “traumatic condition” is defined as “a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.” (§ 273.5, subd. (c).) Rivera asserts that “[m]ere skin redness” is insufficient evidence of a traumatic condition for purposes of section 273.5. Skin redness, he contends, “is more transitory in nature and is the result of the application of less force than a bruise.”
We disagree with Rivera’s conclusion. Section 273.5 is violated even when the defendant inflicts only a “minor” injury on the victim. (§ 273.5, subd. (c)); People v. Wilkins (1993) 14 Cal.App.4th 761, 771 [“‘the Legislature has clothed persons . . . in intimate relationship with greater protection by requiring less harm to be inflicted before the offense is committed’”].) While bruising may require application of more force than red marks on the skin, the statute makes no distinction on that ground. The only question is whether the injury inflicted resulted in a condition of the body, including one of a “minor” nature, caused by a physical force. “Mere skin redness” is an external injury, minor though it may be, caused by a physical force. None of the cases cited by Rivera supports a different conclusion.
Rivera relies principally on People v. Abrego (1993) 21 Cal.App.4th 133, in which the record disclosed “no evidence of even a minor injury sufficient to satisfy the statutory definition.” (Id. at p. 138.) In Abrego, the victim testified she had not been injured or bruised, and sought no medical treatment, but she told a police officer that her face and head were “sore and tender” where Abrego had struck her; the officer testified he did not observe any injuries to the victim. (Id. at p. 136.) The court rejected the People’s claim that soreness and tenderness were sufficient to constitute a traumatic condition, pointing out that the Legislature has distinguished, in other penal statutes, the infliction of pain from the infliction of injury. (Id. at p. 138.) Abrego does not assist Rivera; in Abrego there was no evidence at all of trauma to the body, minor or otherwise. (See also People v. Wilkins, supra, 14 Cal.App.4th at p. 771 [police officer’s observation of “redness about [the victim’s] face and nose,” and information from victim that defendant had hit her in the face and that her face and neck were sore, were sufficient to establish probable cause to believe defendant had violated section 273.5]; People v. Beasley (2003) 105 Cal.App.4th 1078, 1085 [victim sustained large bruises from being beaten with a rod; the court observed that “Beasley admits bruising constitutes a traumatic condition for purposes of Penal Code section 273.5”].) Rivera asserts that in People v. Beasley, the defendant did not challenge the proposition that bruising constituted a traumatic condition. But we entertain no doubt that any such challenge necessarily would have been rejected, just as we reject Rivera’s claim here that “[m]ere skin redness” is too minor to constitute a traumatic condition.
Rivera presents a separate argument that his conviction under section 273.5 violated the Fourteenth Amendment, because there was no proof beyond a reasonable doubt of a traumatic condition. He cites Jackson v. Virginia (1979) 443 U.S. 307, 316, and People v. Johnson (1980) 26 Cal.3d 557, 576-578, for the proposition that proof beyond a reasonable doubt of the existence of every element of the charged offense requires a showing of more than a “modicum” of evidence. But we have found that skin redness constitutes a traumatic condition, and both deputies testified to the existence of skin redness. Rivera offers no explanation or argument suggesting why the deputies’ testimony should be considered insufficient on the point. There was no Fourteenth Amendment violation.
2. The trial court did not abuse its discretion in admitting evidence of Rivera’s gang affiliation.
Rivera argues the trial court abused its discretion when it allowed testimony relating to Rivera’s gang affiliation. The testimony consisted of testimony from Deputy Jacob that:
· Jimenez told him, with regard to Rivera’s threatening messages, that she believed Rivera was going to carry out the threats and that Rivera “had friends within the gang that have killed people ….”
· Jacob saw tattoos on Rivera indicating membership in the Southsider gang.
· Jacob, when testifying about his fear that Rivera would carry out the threat he allegedly made against Jacob, said that he had “seen what gangsters from the South Side gang are capable of,” and that “the network of that gang is wide ….”
Before trial, Rivera asked the court to exclude any gang-related evidence, arguing it would be “irrelevant and prejudicial, and under [section] 352, I’d ask the court to exclude it.” The prosecution argued the evidence was “very relevant” and was “part and parcel of the threats and the fear of these victims [Jimenez and Jacob].” The trial court ruled the evidence would be admitted: “[W]hen you consider all of the surrounding circumstances, including the prior relationship, any gang affiliation, that goes to two issues. It goes to [Rivera’s] state of mind regarding his specific intent to carry out the threats and it goes to the victim’s state of mind as to whether or not she was in a state of sustained fear.”
Under Evidence Code section 352, the trial court in its discretion may exclude evidence “if its probative value is substantially outweighed by the probability that its admission will … create substantial danger of undue prejudice ….”
Among the elements of a criminal threat are the defendant’s “specific intent that the statement … is to be taken as a threat,” and that the statement “causes [the victim] reasonably to be in sustained fear for his or her own safety ….” (§ 422.)
On appeal, Rivera argues the trial court, while expressly finding the evidence was relevant, failed to weigh (or even consider) the danger of undue prejudice to Rivera. Had the court done so, the argument continues, it would have concluded the relative probative value of the evidence was low, because the undisputed evidence (testimony from Jimenez) showed Rivera had not had any contact with the gang for ten years. We cannot agree.
First, as Rivera concedes, a trial court need not expressly weigh prejudice against probative value, “or even expressly state it has done so.” (People v. Williams (1997) 16 Cal.4th 153, 213.) “All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under … section 352.” (Ibid.) Rivera’s counsel expressly argued the evidence was both irrelevant “and prejudicial” under Evidence Code section 352. We will not assume that a trial judge, considering the admissibility of gang affiliation evidence before trial, has failed to consider the very point at issue: whether the probative value of the evidence is outweighed by the prejudicial effect.
Second, the trial court’s exercise of discretion cannot be disturbed on appeal except on a showing that its discretion was exercised “‘“in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” [Citation.]’ [Citations.]” (People v. Albarran (2007) 149 Cal.App.4th 214, 225.) It is Rivera’s burden on appeal to establish abuse of discretion and prejudice (ibid.), and he has not done so. Rivera merely asserts that, as in People v. Albarran, “the evidence was introduced primarily to prove [Rivera’s] disposition to commit crimes rather than to prove an element of the charge he made criminal threats.” But there is no support for Rivera’s claim in the record. Moreover, he articulates no basis for finding a “substantial danger of undue prejudice” from admission of the evidence. In Albarran, the court found that, even if some of the gang evidence were relevant to issues of motive and intent, “other extremely inflammatory gang evidence was admitted, which had no connection to these crimes. . . . [C]ertain gang evidence admitted was so extraordinarily prejudicial and of such little relevance that it raised the distinct potential to sway the jury to convict regardless of Albarran’s actual guilt.” (Id. at pp. 227-228.) This is clearly not such a case. All the evidence cited was relevant to establishing the elements of a criminal threat, and there was no showing it was inflammatory. Accordingly, no abuse of discretion has been shown.
As the People point out, the jury convicted Rivera of only one of the two criminal threat counts against Jimenez, could not agree on the count against Deputy Jacob, and convicted Rivera of misdemeanor assault rather than assault with a deadly weapon. This does not appear to be a jury that was swayed by the gang evidence “to convict regardless of [Rivera’s] actual guilt.” (People v. Albarran, supra, 149 Cal.App.4th at p. 228.)
3. The trial court did not abuse its discretion in admitting Jimenez’s statement that she had been abused for nine and a half years.
Prior to trial, Rivera sought to exclude the final portion of Jimenez’s written statement to the police, in which she wrote: “I have been abused for nine and a half years, verbal and hitting me and breaking things.” Rivera argued it “would be character evidence and it would be extremely prejudicial and have very limited probative value.” The prosecution argued the statement was admissible under Evidence Code section 1109, which provides that evidence of the defendant’s commission of other domestic violence is not made inadmissible by Evidence Code section 1101 (generally making character evidence inadmissible to prove conduct on a specified occasion) if the evidence is not inadmissible pursuant to Evidence Code section 352. The trial court ruled the statement was admissible, observing that under People v. Butler (2000) 85 Cal.App.4th 745 – a case involving criminal threats under section 422 – “the party’s history can also be considered as one of the relevant circumstances. Again, I think that goes to the victim’s state of sustained fear, so I will allow that statement in.” The jury was instructed that this evidence (as well as the evidence of Rivera’s alleged gang affiliation) was admitted “for the limited purpose of evaluating [Rivera’s] specific intent to carry out any alleged threat, and to evaluate whether the victim was in sustained fear. You may consider that evidence only for that purpose and for no other.”
“Except as provided in subdivision (e) or (f) [not applicable here], in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1109, subd. (a)(1).)
The trial court also permitted a detective’s testimony that Jimenez told him that there were nine years of undocumented domestic violence between her and Rivera.
Rivera again argues that the record does not indicate the trial court “even considered” the potential prejudice from admitting Jimenez’s statement. He also argues reversal is required because the probative value of the statement “was outweighed by the danger that the jury would be swayed by emotion rather than the facts,” and that Evidence Code section 1109 is unconstitutional. His claims are without merit.
First, as we have already observed, the trial court need not expressly state on the record that it has weighed the prejudice against the probative value. (People v. Williams, supra, 16 Cal.4th at p. 213.) Again, counsel expressly argued the admission of Jimenez’s statement “would be extremely prejudicial and have very limited probative value,” and the trial court expressly stated it was allowing the statement “over the defense objection ….” We think it apparent that the trial court understood its responsibility to weigh the statement’s probative value against the probability that its admission would create a “substantial danger of undue prejudice ….” (Evid. Code, § 352.)
Second, we see no abuse of discretion in the trial court’s ruling. Rivera claims that, because the proffered evidence “was only a cursory statement by Jimenez, the trial court should have found that the jury would have convicted [Rivera] for unspecified conduct during the nine years preceding his arrest rather than the facts from the conduct leading to his arrest.” But the very fact that it was a “cursory statement” suggests the opposite conclusion. The lack of any details relating to specific incidents – instead, merely the description “verbal and hitting me and breaking things,” without any inflammatory details – makes it less, not more, likely that the jury would convict Rivera based on his character rather than on the conduct at issue. Moreover, the jury was instructed it could consider the evidence only in evaluating the criminal threat charges. On this record, we certainly cannot say that “‘the prejudicial effect of the evidence clearly outweighed its probative value.’” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314-1315.) The trial court’s ruling was not “palpably arbitrary, capricious [or] patently absurd” (id. at p. 1314), and accordingly no abuse of discretion has been shown.
Third, Rivera contends that under the due process clauses of the Fifth and Fourteenth Amendments, he was entitled to have past history of domestic violence either excluded from evidence or established by proof beyond a reasonable doubt, and that Evidence Code section 1109 is unconstitutional as applied to him. However, he acknowledges that he has raised the issue of the constitutionality of Evidence Code section 1109 “to preserve it for federal review,” and that similar challenges have been rejected by the California courts. (E.g., People v. Jennings, supra, 81 Cal.App.4th at pp. 1310-1313 [citing cases rejecting contention that Evidence Code section 1109 runs afoul of due process provisions, and holding that section 1109 does not violate equal protection provisions].) We see no reason to depart from California precedent on this point.
4. The trial court erred in refusing to permit Rivera to be present during the readback of testimony to the jury, but the error was harmless.
During jury deliberations, the jury requested a readback of (1) Deputy Jacob’s testimony regarding the threat allegedly made to him at the hospital, and (2) testimony from Jacob, Fenderson and Marasco “regarding anything to do with ‘the club.’” The trial court refused Rivera’s request to be present at the readback, observing readback was not a critical stage of the proceedings; both attorneys were aware of exactly what testimony would be read back; and both attorneys were invited to listen to the readback. Counsel for Rivera declined to attend the readback, asserting that it was a critical stage and that he would not attend without Rivera because the jury might think Rivera was not concerned about it. On appeal, Rivera argues the trial court violated his statutory and constitutional rights to be present during the readback to the jury. He is correct on the first point, but not on the second, and in any event the error is harmless.
Counsel stated: “[J]ust to make the record, we’re alleging that it is a critical stage, that it would impact on both state and federal constitutional rights, his due process rights and his right to a public trial. My fear is that if [the prosecutor] and I were to go back or if I were to go back without Mr. Rivera, there could be some question of where he is, why isn’t he interested in this. So it puts me in an awkward position. [¶] Although, I know what’s going to be read, if I went back there without him, the jury might think well, maybe he’s not here, maybe he’s not concerned about this. And I wouldn’t want that to happen. So to protect against that, I’m not going to go back. I don’t think it’s the smartest thing to do. And it is our request that we do it out here in open court. I don’t think it would take more than 25 minutes to read everything.”
Under section 977, subdivision (b)(1), a person accused of a felony must be present at specified proceedings, and in addition must be personally present “at all other proceedings” unless he executes a written waiver in open court. Consequently, the trial court erred in refusing Rivera’s request to be present at the readback. However, the error was harmless, as there is no reasonable probability that the result of the trial would have been more favorable absent the error. The point is controlled by People v. Avila (2006) 38 Cal.4th 491, 597-598, in which the defendant asserted that the trial court, when it allowed the rereading of testimony in the defendant’s absence and without obtaining a waiver, violated both section 977 and state and federal constitutional provisions. Avila held:
“In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present ….” (§ 977, subd. (b)(1).)
Neither defense counsel nor the prosecutor brought section 977 to the trial court’s attention.
“Defendant’s absence from the readback of [the witness’s] testimony violated section 977, subdivision (b)(1), because defendant did not execute in open court a written waiver of his right to be personally present. But the error was ‘statutory only and thus “is reversible only if it is reasonable probable the result would have been more favorable to defendant absent the error.” [Citation.]’ [Citation.] Because defendant provides no basis on which we could conclude the result of his trial would have been different had he been present at the readback [citation], we find the violation of section 977 was harmless. For the same reason, his absence at the readback did not offend his constitutional rights to due process or a fair and reliable trial.” (People v. Avila, supra, 38 Cal.4th at p. 598.]
Rivera also contends his exclusion from the readback violated his constitutional right to be present at all critical stages of a criminal trial. But he admits, as he must, that California courts have found that a criminal defendant does not have the right to be present during readback. (People v. Horton (1995) 11 Cal.4th 1068, 1120-1121 [“a ‘defendant is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his or her opportunity to defend the charges against him, and the burden is on defendant to demonstrate that his absence prejudiced his case’”; “[t]he reading back of testimony ordinarily is not an event that bears a substantial relation to the defendant’s opportunity to defend”].)
Rivera asserts People v. Avila presented an identical situation to his case, but claims that, unlike Avila, “there is ample evidence of prejudice ….” Specifically, he asserts that “but for” the readback of the testimony relating to the club, “the jury may never have reached a guilty verdict on the assault charge.” But the fact Rivera was convicted obviously does not constitute the necessary showing of prejudice, and Rivera points to no other “basis on which we could conclude the result of his trial would have been different had he been present at the readback ….” (People v. Avila, supra, 38 Cal.4th at p. 598.) Indeed, after the readback, the jury found Rivera not guilty on the charge of assault with a deadly weapon, and guilty only of the lesser included offense of simple assault. The more rational conclusion is that the readback benefitted Rivera rather than prejudicing him. In any event, we see no relevant distinction between this case and Avila.
Rivera also complains that the record does not show what instructions were given to the court reporter as to the readback; he further asserts that in People v. Avila, the jury was admonished not to deliberate or discuss the case while the reporter was in the jury room, and no similar admonition was given in his case. But Rivera fails to show any harm from these asserted errors. The court stated on the record that “[b]asically, all the court reporter wants to do is to read back the testimony in a monotone voice.” Both attorneys explicitly approved the testimony that would be read back, and both were invited “to sit in the jury deliberation room if they want to and listen to the read back.” And counsel’s decision not to do so based on his asserted fear the jury would draw a negative inference from his presence without Rivera cannot create the necessary showing of prejudice. (See People v. Horton, supra, 11 Cal.4th at p. 1121 [“his [defendant’s] suggestion that the jury might have been favorably influenced by defendant’s reactions to the reading back of the testimony is entirely speculative”].)
5. The trial court did not fail to disclose any police personnel records discoverable under Pitchess.
Before trial, Rivera moved for discovery of police personnel records of Deputy Jacob and Deputy Fenderson under Pitchess v. Superior Court, supra, 11 Cal.3d 531. The motion sought materials relating to accusations that the deputies engaged in acts of misconduct including excessive force, falsification of reports and coercive conduct. The trial court found good cause to hold an in camerahearing with respect to excessive force (as to Deputy Jacob only) and with respect to falsification of reports and coercive conduct as to both deputies. The court held an in camerahearing and determined that there was no information to disclose to the defense.
Rivera requests our independent review of the in cameraproceedings, and the prosecution concurs that independent review of the sealed transcript is appropriate. We have conducted that independent review, and conclude that the trial court did not err in determining there was no discoverable information to be disclosed.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, J., FLIER, J.